Generic Constitutional Law

100 Pages Posted: 22 Sep 2004 Last revised: 30 Aug 2012

See all articles by David S. Law

David S. Law

The University of Hong Kong - Faculty of Law; University of California, Irvine School of Law

Date Written: July 29, 2012

Abstract

As Justice Breyer has observed, "[j]udges in different countries increasingly apply somewhat similar legal phrases to somewhat similar circumstances." This article explains why constitutional law is bound to display strong underlying similarities, if not signs of convergence, across subnational and national borders. The explanation is threefold. First, constitutional courts experience a common theoretical need to justify countermajoritarian judicial review. This concern, and the stock responses that courts have developed, amount to a body of generic constitutional theory. Second, for heuristic reasons, courts employ common problem-solving skills in constitutional cases, which together constitute a kind of generic constitutional analysis. Third, courts face overlapping influences, largely not of their own making, that encourage the adoption of similar legal rules. These similarities make up a body of generic constitutional doctrine. In conclusion, the article discusses how constitutional pedagogy should be reformed to take account of these developments, and whether judges can or should resist the advent of generic constitutional law.

Keywords: Constitutional law, comparative law, comparative constitutional law, comparative public law, constitutional theory, comparative constitutional theory

Suggested Citation

Law, David S., Generic Constitutional Law (July 29, 2012). Minnesota Law Review, Vol. 89, p. 652, 2005; San Diego Legal Studies Paper No. 05-28; Washington University in St. Louis Legal Studies Research Paper No. 11-04-04. Available at SSRN: https://ssrn.com/abstract=593645

David S. Law (Contact Author)

The University of Hong Kong - Faculty of Law ( email )

Pokfulam Road
Hong Kong, Hong Kong
China

HOME PAGE: http://www.davidlaw.ca

University of California, Irvine School of Law ( email )

401 E. Peltason Dr.
Ste. 1000
Irvine, CA 92697-1000
United States

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